Wednesday, December 11, 2013

I've written about new developments in anti-student zoning regulations before, but the ingenuity of towns and cities seeking to use their regulatory powers to restrict students from living in university-adjacent residential neighborhoods seems to know no bounds. Layered on top of existing exclusionary zoning regulations that limit entire areas to single-family detached dwellings, these rules generally go beyond addressing form and use to limiting tenancy and occupancy in such a way that students are greatly limited, if not altogether excluded, from inhabiting the primary residential option that is available to them.

Students have always been easy targets for such regulation. As temporary residents, they are politically weak and fragmented, and unlike racial minorities and certain other groups, they do not enjoy heightened legal protections against housing discrimination. However, the same regulations that impact students frequently have adverse impacts on poor and minority populations as well: animus against students may therefore serve as cover for less legally and socially acceptable forms of discrimination (as the ACLU's amicus brief in the rental caps case below discusses at length).

These regulations have been around for decades, but recent years have seen unprecedented attempts to limit the expansion of student populations into residential neighborhoods (generally a result of the failure of single-family zoning, by itself, to staunch the inflow). Among the approaches used, past and present, include:

Occupancy Limits. The most common restriction involves amending statutory definitions of "family" in housing or zoning codes to ensure that single family homes are unavailable for use by roommate groups. Alan Durning, in a recent Sightline article, eviscerated the basis for such regulations, but nonetheless they have the approval of the Supreme Court (1974's Belle Terre v. Boraas, in which an anti-student occupancy limit was upheld 7-2).

Direct Prohibitions. The only place I'm aware of that has adopted this type of overt discrimination is Philadelphia's Yorktown neighborhood, immediately adjacent to Temple University, which sponsored the creation of a special Yorktown Overlay in which students would be entirely prohibited from renting in single-family zones (with an exception for owner-occupant landlords). This prohibition against a named class of persons, reminiscent of the racial covenants and zoning laws of the first half of the 20th century, was handily upheld by the Commonwealth Court of Pennsylvania.

Rental Caps. Until recent years, it had apparently never occurred to Americans that they might invoke municipal law to simply outlaw tenancy on a widespread basis, but that is precisely what several Minnesota towns have recently done to varying degrees, building off of earlier laws restricting short-term vacation rentals. The town of Winona, in particular, home to Winona State University, adopted a law limiting rental licenses to 30% of the houses on each block. Several homeowners, finding that the law greatly devalued their properties to the extent of rendering them effectively unsaleable, filed suit against the town in a case that is on appeal to the Minnesota Court of Appeals (after a district court returned an unfavorable ruling to the homeowners).

Resident complaints about the behavior of groups of student renters undoubtedly have a real basis, though it is easy to stereotype and over-generalize, and there must be better means of regulating behavior than setting blanket restrictions and prohibitions on an entire class of persons. Moreover, the very demographic pressure of students on neighborhoods of single-family homes may be exacerbated by an absence of multifamily housing (Winona, despite being a small city, does have a narrow band zoned for multifamily housing, but it is not adjacent to the hemmed-in university, which appears to have little room for building new dormitories).

The resort to rental caps, however, is a rather striking step – perhaps the terminal step – in the century-long evolution of American zoning practice, making explicit what was always implicit in the idealized conception of the single-family suburb. Beyond the context of town-gown relations, the notion of using legal means to limit rentals seems to be proliferating in response to the purchase of foreclosed single-family homes by large real estate investors who intend to rent them, as a recent New York Times article documents. However, the Winona law's practical effect of trapping owners in their homes, and the arbitrary manner in which residential land values were transferred to owners with rental licenses, seems to have been a step too far even for the pursuit of the bourgeois utopia. That the state court upheld the law should not come as a surprise, but it will be interesting to keep an eye on the proceedings in the appeals court, which is scheduled to hear oral argument on the case tomorrow, December 12.